[2012] FWAFB 4998 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT |
SYDNEY, 14 AUGUST 2012 |
Appeal against decision - dispute settlement procedure - introduction of new policy on drug and alcohol testing - arbitration of differences between parties - testing methodology to be adopted.
[1] On 26 March 2012 Senior Deputy President Hamberger determined a range of matters relating to the introduction by Endeavour Energy of a new policy and procedure dealing with drug and alcohol testing in the workplace. The unions involved 1 accepted that there should be a formal drug and alcohol policy to identify whether employees are “fit for duty” and did not oppose the concept of random testing. However the unions objected to certain features of the proposed policy and procedure.
[2] The parties agreed, pursuant to the dispute settlement procedure in the Endeavour Energy Enterprise Agreement 2010, 2 to refer their differences regarding the proposed policy to Fair Work Australia (FWA) for conciliation and/or arbitration: see s.739 of the Fair Work Act (the Act).
[3] There were several conciliation conferences before the Senior Deputy President and a number of matters, upon which agreement could not be reached, were referred for arbitration. The arbitral proceedings extended over five days and included the presentation of expert evidence from consultant toxicologists and others involved with drug and alcohol programmes and testing.
[4] One of the main differences between the parties concerned the type of testing to be used. Endeavour Energy proposed urine testing and the unions proposed saliva (swab) testing. The Senior Deputy President considered the evidence and submissions presented and found that the introduction of urine testing by Endeavour Energy would be unjust and unreasonable. He concluded that the appropriate method of drug testing should be through oral fluid and that the testing was to be done in accordance with AS4760-2006, the Australian Standard governing procedures for specimen collection and the detection and quantitation of drugs in oral fluid.
[5] The Senior Deputy President also determined several other issues in dispute between the parties. These included the acceptable blood alcohol concentration to be applied, pre-employment and pre-placement testing, the process for random testing and the criterion to be applied in testing “for cause/suspicion, accident or post-incident.” The findings and conclusions of the Senior Deputy President on these issues are not challenged on appeal.
[6] In the appeal, Endeavour Energy only sought to challenge the decision relating to the method of drug testing. It was submitted that whilst the decision is within jurisdiction, it is encumbered by error such that permission to appeal should be granted and the decision reversed.
[7] Limited permission to intervene in the appeal proceedings was granted to the Australian Mines and Metals Association (AMMA). AMMA supported the appeal and the submissions put by Endeavour Energy.
The decision under appeal
[8] As referred to earlier, the Senior Deputy President had a range of matters before him in the arbitral proceedings relating to the proposed drug and alcohol policy. At the outset the Senior Deputy President noted that the proposed policy was based on promoting health and safety and preventing accidents, and that the parties had agreed that the relevant principles to be applied in determining the issues were those set out in the Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales 3 (the XPT Case), namely that the Tribunal should “examine all the facts and not to seek to interfere with the right of the employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”4
[9] In considering the appropriate method of drug testing to be adopted, the Senior Deputy President referred to parts of the evidence given by expert witnesses called by the parties. These were Dr J. Vine (Labour Director, Racing and Analytical Services Ltd) and Dr J. Lewis (Consultant Toxicologist, National Drugs and Alcohol Research Centre, University of New South Wales) who were called by Endeavour Energy, and Dr D. Allen (Managing Director, Drug & Alcohol Solutions Australia) and Dr K. Pidd (Deputy Director, National Centre for Education on Addiction (NCETA), Flinders University) who were called by the unions. The witnesses referred to the benefits of and problems with both urine testing and oral fluid testing, and the relevant Australian Standards which have been developed. There was also evidence regarding the adoption of oral fluid testing by many major employers in Australia, including the two other electricity distributors in New South Wales (Ausgrid and Essential Energy).
[10] The conclusions of the Senior Deputy President are set out in the following paragraphs of the decision: 5
“[36] It is clear from all the evidence presented during the hearings that neither oral fluid nor urine testing devices are perfect. Seen from one perspective, urine testing can be seen as more ‘accurate’ in that it is more likely to pick up whether an employee has at some stage taken certain substances. However, that is not necessarily the goal of a workplace drug testing regime. I repeat what I said in Shell Refining (Australia) Pty Ltd v CFMEU 6:
‘[117] Neither party in this dispute sought to argue that random testing for drugs (or alcohol) was unjust or unreasonable. However both parties also recognise that random testing is an intrusion on the privacy of the individual which can only be justified on health and safety grounds. The employer has a legitimate right (and indeed obligation) to try and eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health or safety. Beyond that the employer has no right to dictate what drugs or alcohol its employees take in their own time. Indeed, it would be unjust and unreasonable to do so.’
[37] Based on the evidence presented to me in this case I draw the following conclusions.
[38] Both methods are susceptible to cheating. For example, cleaning one’s mouth thoroughly after smoking cannabis would minimise the risk of being caught by an oral fluids test. Urine can also be adulterated. There is some evidence that saliva/oral fluid screening is less susceptible to specimen adulteration or substitution compared to urinalysis. In practice however, the likelihood of someone being in a position to cheat effectively when a test is conducted at random and with no prior warning is in my opinion relatively low.
[39] Australian standards exist governing both methods; and there are laboratories accredited for the analysis of both oral fluid and urine samples. Systems are in place to verify on-site testing devices for both oral fluids and urine.
[40] Neither method tests directly for impairment. However, a method which tests for recent consumption (only) is more likely to identify someone who is impaired. While some witnesses regard this as a weakness, it is precisely because it only detects for recent use that oral fluid testing is a better indicator of likely impairment as a result of smoking cannabis (the most widely used drug apart from alcohol) than a urine test. Indeed, urine testing may be unable to identify that someone has smoked cannabis in the previous four hours - precisely the time frame which is most relevant for identifying likely impairment.
[41] Not only is urine testing potentially less capable of identifying someone who is under the influence of cannabis, but it also has the disadvantage that it may show a positive result even though it is several days since the person has smoked the substance. This means that a person may be found to have breached the policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely. In the circumstances where oral fluid testing - which does not have this disadvantage - is readily available, I find that the introduction of urine testing by the applicant would be unjust and unreasonable. Accordingly I find that the system of drug testing that should be used by the applicant for on-site drug testing should be that involving oral fluids. This should be done on the basis of AS4760 - 2006: the Australian Standard governing procedures for specimen collection and the detection and quantitation of drugs in oral fluid.”
Submissions on appeal
[11] Endeavour Energy submitted that the Senior Deputy President’s decision is attended by error in that it fails to consider all of the facts, including the policy and other steps taken by Endeavour Energy to promote workplace safety. It was said that the Senior Deputy President failed to fully assess the evidence relating to testing methods with particular reference to testing cannabis and benzodiazepines. It was further argued that the decision is in error in that it misconstrues the evidence about the scientific standing and reliability of the two forms of testing. In this regard it was said that the expert evidence before the Senior Deputy President indicated that urine testing had a more substantial deterrent value and that the oral fluid testing method was more likely to result in a negative test result before the impairing effects of cannabis consumption had worn off.
[12] Endeavour Energy asserted that, in reaching his conclusions, the Senior Deputy President placed inappropriate weight on the evidence given by witnesses who were not experts in the field of toxicology to the extent that this evidence was inconsistent with that provided by acknowledged toxicologists. It was said that the evidence did not support the conclusion that a person may test positive for cannabis through urine testing when their capacity to undertake the job is unimpaired.
[13] Endeavour Energy also submitted that the Senior Deputy President was in error in not following the approach adopted in comparable circumstances by Lawler VP in Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited 7 (HWE Mining) in as much as that decision reached a different conclusion on the appropriate testing method. Finally, Endeavour Energy asserted that the decision failed to give adequate weight to the duties and obligations of employers under the Work Health and Safety Act 2011 (the WHS Act), with particular regard to the elimination or minimisation of health and safety risks.
[14] AMMA supported the submissions of Endeavour Energy. Additionally, AMMA submitted that there was no proper basis in the present matter to interfere with managerial autonomy, and that the decision failed to give proper weight to the employer’s workplace health and safety obligations.
[15] The appeal was opposed by the unions. It was submitted that the decision was not attended by error as there was sufficient evidence before the Senior Deputy President to justify the conclusions reached.
[16] The unions submitted that the Senior Deputy President appropriately recognised the potential risks associated with drug use. Further, the unions argued that there was no error in the conclusions about the practicality, speed and less embarrassing nature of oral fluid testing in contrast with urine testing. While the unions did not dispute the policy and procedure upon which the drug testing regime was founded, they asserted that the evidence before the Senior Deputy President permitted his conclusions with respect to testing outcomes and the residual effects of cannabis use. The unions asserted that the decision did not misapply the generally accepted approaches to issues of this nature and that the conclusions reached were reasonably open on the evidence before the Senior Deputy President.
[17] The unions acknowledged that the Australian Standard for oral fluid testing 8 does not provide for validation of on-site oral fluid testing devices in the same way that the relevant Australian Standard addresses urine testing, but asserted that the evidence before the Senior Deputy President did not undermine his ultimate conclusion. They also asserted that oral fluid testing still enabled testing for benzodiazepines.
[18] In relation to the deterrent effect of drug testing, the unions said that the evidence before the Senior Deputy President did not establish error in his final conclusion, but in fact supported that conclusion on the basis that deterrence was closely linked to acceptance by employees of a testing regime. It was said that employees are less likely to comply with a policy that they resent.
[19] Finally, the unions submitted that no error can be established simply because the Senior Deputy President reached a different conclusion to that of Lawler VP in HWE Mining. It was said that each matter of this nature needs to be determined on its own facts and circumstances, and that to the extent that the decision of the Senior Deputy President relied upon the evidence of certain witnesses, no error was established.
Appeal principles
[20] The appeal is brought under s.604(1) of the Act which provides that an aggrieved person may appeal a decision with the permission of FWA. Subsection 604(2) provides that FWA must grant permission if it is satisfied that it is in the public interest to do so.
[21] The decision under appeal involved the exercise of discretion. As such, the principles in House v The King 9 are relevant:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 10
[22] An appeal under s.604 of the Act involves an appeal by way of rehearing and, in the case of a discretionary decision, can only succeed if the appellant can identify appealable error on the part of the primary decision-maker. 11
Permission to appeal
[23] Endeavour Energy relied upon a number of public interest grounds in submitting that permission to appeal should be granted. These included the public interest in the creation and maintenance of safe workplaces and in ensuring that the best and most reliable methodology for drug testing is introduced. It was also submitted that permission to appeal should be granted because there are conflicting decisions of FWA on the question of the appropriate modality for drug testing. In this regard, reference was made to the decision in HWE Mining which was referred to in the proceedings before the Senior Deputy President but not dealt with in his decision. Finally, it was submitted that there are appealable errors in the decision and that the appeal raises serious issues in relation to the way in which FWA deals with expert evidence.
[24] The unions accepted that it would be open to the Full Bench to grant permission to appeal given the decision in HWE Mining and the non-publication of the Full Bench decision in Shell Refining (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union 12 resulting in the absence of a publically available Full Bench decision on the subject of drug testing. However the unions rejected the submission of Endeavour Energy that FWA must grant permission to appeal on public interest grounds relating to health and safety issues.
[25] We are satisfied that it is appropriate in the present matter to grant permission to appeal. This is because of the issues raised regarding uncertainty inherent in recent contradictory findings by FWA relating to appropriate methods of drug testing and the alleged errors by the Senior Deputy President in the decision-making process. Whilst we recognise the importance of ensuring safe workplaces and compliance with health and safety legislation, we do not accept that the public interest requirement in s. 604(2) will be satisfied in all cases simply because health and safety obligations are involved.
Consideration of issues in the appeal
[26] There are three broad areas which arise for consideration in the appeal. The first concerns the specification of the issue which the Senior Deputy President was asked to determine in relation to the appropriate method of testing for drugs and the approach to be taken in its determination. The second relates to the range of considerations relevant to the determination as to the appropriate drug testing method to be adopted and the conclusions reached by the Senior Deputy President in relation to these matters. The third relates to the HWE Case and its relevance to the determination of the matters before the Senior Deputy President.
[27] We turn to consider these matters.
(i) Approach to the arbitration
[28] The dispute that was referred to the Senior Deputy President pursuant to the dispute settlement procedure was described by Endeavour Energy in its Amended Application under the heading “What is the dispute about” as follows:
“The parties disagree on the type of drug testing to be used. The Applicant proposes urine testing whilst the Respondents reject this and proposes [sic] saliva (swab) testing.”
[29] It was agreed by the parties that this issue and the other disagreements as to the contents of the policy and procedure were to be determined having regard to the principles in the XPT Case. This is stated by the Senior Deputy President at paragraph 6 of his decision.
[30] The nature of the proceedings before the Senior Deputy President and the evidence and the submissions presented by the parties on the appropriate testing method to be adopted suggest that the determination that was sought from him involved a consideration of the respective merits of urine and oral fluid testing. The question before the Senior Deputy President was therefore not simply whether the introduction of urine testing as a component of the proposed policy would be ‘unjust or unreasonable’ to employees. The Senior Deputy President was called upon to consider which modality of testing ought to be implemented specifically relative to Endeavour Energy. In effect, the Senior Deputy President was asked to determine if it was unjust or unreasonable for the employer to adopt urine testing when there was an alternative suitable method of testing available.
[31] In arbitration proceedings brought to Fair Work Australia pursuant to s.739 of the Act, it is for the parties to identify the nature of the dispute and the basis upon which it should be arbitrated. Whilst there might in the present case have been greater clarity in this regard, we are satisfied that the approach adopted by the Senior Deputy President was consistent with what was sought by the parties in referring the dispute for arbitration and the determination of the issue as to the appropriate testing method.
[32] This is evident from the way that Endeavour Energy approached its case, including in asking one of its expert witnesses to give an opinion on
[33] It was therefore appropriate for the Senior Deputy President to approach the determination of the issue regarding the method of testing in the way that he did. This involved a consideration of the respective merits and problems associated with the different testing modalities having regard to the evidence presented and the making of an overall assessment as to which was the appropriate methodology to be adopted by Endeavour Energy.
(ii) Which testing method should be adopted?
[34] The Senior Deputy President had to consider a significant amount of evidence and material relating to the appropriate testing method to be adopted. In his decision, he refers to and extracts part of the evidence presented, including some lengthy extracts from the witness evidence. The evidence covered a range of issues including:
[35] The Senior Deputy President noted that neither oral fluid nor urine testing devices are perfect and weighed various considerations relating to the testing methods in reaching his conclusions. These included:
[36] In the appeal, Endeavour Energy in effect sought to re-run the case put to the Senior Deputy President, and for the Full Bench to place different weight on the matters considered and reach a different conclusion. Endeavour Energy also sought to raise additional considerations in support of the adoption of urine testing as part of the drug and alcohol policy. However, it is not the function of an appeal bench in a case such as the present to revisit the facts and circumstances and submissions in order to reach its own conclusions on the merits, except where error has been demonstrated in the decision at first instance. In this case, we are not satisfied, having regard to the principles in House v The King, that there has been shown to be such error in the approach of the Senior Deputy President as would warrant an appeal bench overturning the decision.
[37] In the appeal it was submitted by Endeavour Energy that the Senior Deputy President did not properly consider the disadvantages of oral fluid testing methodology and the benefits of urine testing methodology, or give appropriate weight to the rights and expectations of the majority of the workforce as against the privacy concerns of the small group of workers who take drugs. It was therefore said that the decision was not based on a consideration of all the facts.
[38] It is not necessary in this decision to consider again all the evidence and arguments which were advanced by the parties in the proceedings before the Senior Deputy President. It was for him to make a judgment as an exercise of discretion about the competing positions put by the parties relative to the particular circumstances of the case. As stated above, it is not the function of an appeal bench to interfere with such a judgement unless some error has been shown according to House v The King principles.
[39] We have considered all that has been put in the appeal and we are not persuaded that Endeavour Energy has been able to establish any such error in relation to the Senior Deputy President’s decision. In particular we note the following:
(a) The Senior Deputy President referred to relevant aspects of the evidence as to the advantages and disadvantages of the different drug testing methods;
(b) It was open to the Senior Deputy President to give weight to privacy concerns given the problems with both testing methods;
(c) It has not been established in all the circumstances of the case that urine testing is the most appropriate drug testing method to be adopted by Endeavour Energy or that the Company’s obligations under the WHS Act require the adoption of urine testing;
(d) The Senior Deputy President took into account that the two other electricity distribution companies in New South Wales and many other large companies have policies with random drug testing using oral fluid;
(e) The evidence and the case before the Senior Deputy President was largely focussed on cannabis given that it was common ground that cannabis is the most prevalent drug (apart from alcohol) used for non-medical purposes by members of the Australian workforce and the concession in the case by Endeavour Energy regarding the efficiency of oral fluid testing for opiates, amphetamines and cocaine;
(f) The Senior Deputy President placed emphasis in his conclusions on the detection of impairment due to the recent use of cannabis;
(g) The weight of the evidence was that the period of acute impairment caused by cannabis use was in the region of three to six hours, followed by some residual impairment which may last up to 24 hours after use;
(h) The Senior Deputy President sets out in his decision the evidence regarding residual impairment or the “hangover” effect of drug use 14 and therefore cannot be said to have failed to have had regard to such impairment;
(i) The Senior Deputy President also refers in his decision to the evidence regarding the value of urine testing in revealing a pattern of drug use and alerting an employer to the possibility that an employee may have a serious drug problem; 15
(j) The question of cheating and adulteration in relation to both urine and oral fluid testing was raised in the evidence and considered by the Senior Deputy President in reaching his conclusions; 16 and
(k) The Senior Deputy President did not fail to have regard to the deterrent value of the different methods of drug testing 17, although there might be differing views taken on the evidence as to which method might have the greatest deterrent effect relative to the aims of the policy.18
[40] The question of which testing method was to be adopted must be considered having regard to the purpose and aims of the drug testing policy. The proposed Company Procedure on Alcohol and Other Drugs seeks to promote a safe and healthy work environment. The procedure is aimed at (inter alia)
“preventing individuals who may be adversely hindered by alcohol and other drugs from undertaking work or authorised work-related activities, the consequences of which may result in a detrimental effect on health, safety and welfare or other significant aspects of the work environment.”
[41] In particular the procedure provides at clause 5.1.1.3 that:
“An individual must not work in any Company workplace whilst under the influence of:
[42] It was therefore relevant for the Senior Deputy President to give weight to the issue of impairment at work as a result of drug use in considering which testing method should be adopted by Endeavour Energy. It was also appropriate for the Senior Deputy President to focus on the influence of cannabis, given the evidence before him that this is the most widely-used recreational drug apart from alcohol.
[43] Given the aim of the random drug testing policy to identify persons who may be impaired, in circumstances where both urine and oral fluid methods have problems in relation to identifying a person as possibly impaired, it was a question of weighing various factors in reaching a conclusion. These included: the potential for urine testing to fail to identify a person as potentially impaired at the time of greatest impairment; the failure of oral fluid testing to identify a person who may still have some residual impairment; the incorrect identification of a person as potentially impaired by reason of a urine test which might be conducted days after the person consumed cannabis; the availability of effective on-site oral fluid testing devices which provide a quick, less offensive, effective and reasonably reliable means of determining whether an employee has used a drug recently and who may therefore not be fit for work; privacy issues, especially in relation to urine testing; and the possibility under the proposed policy that the first positive test may result in a first and final written warning being given to an employee and a second positive result may result in termination of employment.
[44] Having regard to such matters, it was open to the Senior Deputy President to place significance in reaching his conclusion on the evidence that oral fluid testing rather than urine testing was more likely to detect recent drug use and therefore impairment, and that a positive test result from a urine test might detect drug use at a time which in no way affected their capacity to do their jobs safely.
[45] We therefore consider that it was open to the Senior Deputy President on the evidence and material in the present case to conclude that the introduction of urine testing as part of the proposed policy would be unjust and unreasonable and that oral fluid testing should be adopted instead.
[46] Apart from the abovementioned matters, Endeavour Energy submitted that there were other errors in the approach and decision made by the Senior Deputy President.
[47] It was submitted that, notwithstanding the objection to Dr Pidd’s evidence as lacking the relevant expertise to comment upon certain matters as an expert, the Senior Deputy President failed to give any indication as to the weight accorded to such evidence and as a result relied upon matters on which Dr Pidd opined in the field of toxicology.
[48] Dr Pidd was called to give evidence on behalf of the unions. Although he is not a toxicologist, his curriculum vitae demonstrated that he was clearly a person with extensive expertise relating to alcohol and drug use in the workplace, appropriate responses to deal with risks to occupational health and safety as a result of such use, and the efficacy of workplace drug testing. Dr Pidd prepared a report which was filed in the proceedings and which the experts called by Endeavour Energy had the opportunity to comment upon and criticise.
[49] Section 590 of the Act provides that, except as otherwise provided, FWA may inform itself in relation to a matter before it in such manner as it considers appropriate. Section 591 provides that FWA is not bound by the rules of evidence. The Senior Deputy President had a discretion to admit the report and evidence of Dr Pidd as part of the consideration of the matters before him. This was appropriate given Dr Pidd’s considerable experience and expertise and the relevance of the report and evidence to issues which were under consideration. In many respects it is not only qualified toxicologists who might provide useful evidence to the Tribunal in regard to issues relating to workplace policies for drug testing.
[50] We can identify no error by the Senior Deputy President in the approach adopted or the reliance placed on the evidence of Dr Pidd. It has not been shown on appeal in what respect the evidence was wrong or in what way the Senior Deputy President wrongly relied upon that evidence over the evidence of other experts. The only possible exception relates to the evidence in relation to the “hangover” effect of drug use. However the differences between Dr Vine and Dr Pidd as to their views on “hangover” effects were minor and did not need to be resolved by the Senior Deputy President.
[51] It was also submitted by Endeavour Energy that the Senior Deputy President failed to give sufficient weight to its duties and obligations as an employer under relevant work health and safety legislation. In particular, reference was made to the requirement in the WHS Act for the business or undertaking to do all that is reasonably practicable to ensure the health and safety of workers and others affected by the work. 19 It was said that Endeavour Energy was obliged to bring in the most reliable and practicable system of drug testing available.
[52] It was submitted by Endeavour Energy that the evidence shows that persons affected by “hangover” effects, chronic usage problems and drugs pose a risk to health and safety, and that urine testing is a methodology that can pick up all these matters. It is therefore a reliable and practical means of addressing the potential problems created by having persons affected by drugs in the workplace. It was said that oral fluid testing methodology is not as reliable and has other disadvantages.
[53] The AMMA also submitted that the Senior Deputy President failed to give sufficient weight to the employer’s right to determine how it manages its occupational health and safety obligations.
[54] We note that similar submissions were put to the Full Bench in Shell Refining (Australia) Pty Ltd v CFMEU. 20 The Full Bench rejected the submissions as follows:
“We turn next to the contention that the Senior Deputy President did not pay proper regard to the statutory obligation upon Shell to ensure the health and safety of employees while at work. First we note that the Senior Deputy President specifically acknowledged the statutory obligation. He observed, in the passage set out above, that Shell had an obligation to try and eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health or safety. When it is appreciated that the obligation could not be determinative but is just one of a number of relevant considerations, the contention is robbed of most of its force. It cannot be accepted that any employer which does not have a system of random urine-based drug testing is potentially in breach of the law. As the CFMEU submitted, if the statutory obligation required Shell to adopt random urine testing, then a very large number of other employers would also be obliged to introduce urine testing.” 21
[55] In the present matter, the Senior Deputy President recognised the obligations on Endeavour Energy to take all reasonable actions to allow employees to perform their work safely and to try to eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health and safety. Although the Senior Deputy President does not specifically refer to the new WHS Act, analysis of the legislative obligations relied upon by Endeavour Energy does not lead to the conclusion that they create an obligation on an employer to apply a particular form of drug testing.
[56] The primary obligation on Endeavour Energy under the WHS Act is to “ensure, so far as is reasonably practicable, the health and safety of workers...” 22 The expression “reasonably practicable” is defined in the legislation in s.1823 as meaning, in relation to a duty to ensure health and safety, “that which is reasonably able to be done... in relation to ensuring health and safety, taking into account and weighing up all relevant matters including... the availability and suitability of ways to eliminate or minimise the risk”.
[57] As the Full Bench said in the Shell Refining decision, in the passage quoted above, it cannot be accepted that an employer which does not have a system of random urine-based testing is potentially in breach of occupational health and safety laws. If that were the case then a large number of other employers which have introduced random oral fluid drug testing would be in breach. This would include the other two electricity distributors in New South Wales.
[58] In the present matter the Senior Deputy President did not fail to consider the employer’s occupational health and safety obligations to take reasonable steps to minimise risk associated with employees being impaired by drugs such that their ability to work safely is compromised. There is no reason to conclude that testing for drugs, whether by urine or oral fluid as part of a drug and alcohol policy, would not be properly considered to be a reasonably practicable measure that will minimise risks to health and safety. This might be especially so given the determination by FWA of the appropriate testing method through a resolution process agreed between the employer and unions concerned.
[59] The remaining matters relied upon by Endeavour Energy in seeking to demonstrate error on the part of the Senior Deputy President concern: the issue of the capacity of oral fluid testing to identify the consumption of cannabis by way of a cookie, biscuit or bread; the capacity of oral fluid testing to detect the presence of methamphetamines; and the question of the potential for oral fluid testing to identify a person as “positive” for cannabis when they have only been passively smoking.
[60] The attempt to elevate these issues to such importance as to constitute appealable error is inconsistent with the manner in which Endeavour Energy conducted its case before the Senior Deputy President. There was limited evidence about the matters and little reference to them in the submissions made in the proceedings before the Senior Deputy President. Given the wide-ranging and complex evidence before the Senior Deputy President, it cannot be said to be an error that he failed to address a particular aspect of the evidence, especially where it was not drawn to his attention in submissions as being a matter of significance. To conclude otherwise would be to place an almost impossible burden on a primary decision-maker to set out in their decision every piece of evidence and to make a determination as to whether that evidence is accepted and is of significance. Decision-makers are entitled to rely on the way cases are presented by the parties.
[61] Apart from these observations, we note that there was no evidence that consuming cannabis in cookies is common or a matter of significance in workplaces. Further, having regard to the evidence before the Senior Deputy President, we doubt that passive smoking is a serious issue or problem in relation to oral fluid testing conducted in accordance with the Australian standard. In regard to the detection of methamphetamines, we note the submissions of Endeavour Energy on appeal that:
“The evidence was that qualitatively there was little difference between urine and oral fluid testing for 3 of the substances in AS/NZS4308 being opiates, amphetamines and cocaine. There was however an issue about the capacity of oral fluid testing devices to detect benzodiazepines and cannabis.”
In view of these submissions, it would be difficult to find error in the Senior Deputy President not placing greater emphasis on the question of the capacity of oral fluid testing to identify the use of amphetamines (which include methamphetamines).
[62] Having regard to the evidence and submissions presented and the circumstances of this matter, it was open to the Senior Deputy President and appropriate to conclude that oral fluid testing for drugs should be adopted as part of the new drugs and alcohol policy and procedure of Endeavour Energy.
(iii) Decision in HWE Mining
[63] It was submitted by Endeavour Energy that the Senior Deputy President should have provided reasons for not following the decision of Lawler VP in HWE Mining. It was said that the decision in that case was referred to in the submissions of the parties and was concerned with similar issues as were before the Senior Deputy President. Whilst it was not suggested by Endeavour Energy that the decision in HWE Mining was binding on the Senior Deputy President, it was said that it was incumbent upon him to identify why he did not follow the earlier decision.
[64] We accept that it may have been prudent for the Senior Deputy President to refer in his decision to the decision in HWE Mining, given that it is a recently decided case concerning a consideration of appropriate modalities for drug testing. There are other recent decisions of industrial tribunals on drug testing methodology that may have also been cited. 24 However this may be, the Senior Deputy President was ultimately required to determine the matter which had been referred to him for arbitration on the basis of the evidence and material before him. In this regard, we note that the circumstances of the present matter and the evidence are different to those in HWE Mining.
[65] Unlike in HWE Mining, the matter before the Senior Deputy President did not involve determining whether an established approach to drug testing should be changed. In HWE Mining, the employer was proposing to introduce a programme providing for saliva testing and a continued role for urine testing. In the present case, the issue concerned the appropriate testing methodology to be used in a proposed new policy on drug testing. Further, we note that the evidence in the two matters as to the efficacy of on-site oral fluid screening devices is different. In HWE Mining the concerns expressed as to the efficacy of on-site fluid screening were based on the results of a number of studies and the experience of the Victorian Police in relation to the devices under consideration in those studies. The case was heard in mid-2010. The evidence in the present case was to the effect that there have been significant improvements in the reliability of current on-site oral fluid testing devices.
[66] It is not appealable error to fail to provide reasons for coming to a different conclusion on an issue to that reached in another case on different evidence. Having regard to the evidence in this case, the Senior Deputy President did not err in forming a different conclusion than that reached in HWE Mining in relation to the most appropriate drug testing methodology to be adopted in the circumstances of the matter before him.
Conclusion
[67] For all the above reasons, it has not been shown that the decision of the Senior Deputy President is attended by appealable error. The approaches and policies to be adopted by employers on drug and alcohol testing in the workplace will depend upon what is deemed appropriate according to their needs and the circumstances. In the circumstances of this case and having regard to the matter referred by the parties for determination under the dispute settlement procedure and the evidence and submissions presented, it was open and appropriate for the Senior Deputy President to conclude that oral fluid testing for drugs should be adopted as part of the new drugs and alcohol policy of Endeavour Energy
[68] Accordingly the appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
B Hodgkinson Senior Counsel for Endeavour Energy.
I Taylor and B Miles of counsel for the Respondent Unions.
A Cochrane intervening on behalf of the Australian Mines and Metals Association (AMMA).
Hearing details:
2012.
Sydney:
May 23
June 4.
1 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Australian Municipal, Administrative, Clerical and Services Union and The Association of Professional Engineers, Scientists and Managers, Australia.
2 AE884794.
3 (1984) 295 CAR 188.
4 ibid at 191.
8 AS 4760.
9 (1936) 55 CLR 499.
10 ibid at 504-505.
11 See s.607(2) of the Act; and the decisions in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; McDonald’s Australia Pty Limited (2010) 196 IR 155.
12 [2009] AIRCFB 428.
13 See report prepared by Dr J. Lewis dated 26 October 2011.
14 [2012] FWA 1809 at paras [20] and [35].
15 ibid at paras [20] and [23].
16 ibid at para [38].
17 ibid at paras [21] and [31].
18 E.g. oral fluid testing is more focussed on acute impairment, whereas urine testing is more likely to uncover patterns of drug use which may lead to levels of impairment and safety concerns.
19 Work Health and Safety Act 2011 (NSW) s.19.
20 [2009] AIRCFB 428.
21 ibid at para [21].
22 See s.19(1) and s.17 of the WHS Act.
23 Section 18 provides:
“In this Act, ‘reasonably practicable’, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
24 See eg BHP Iron Ore v CMETSWU (1998) 82 IR 162; Re Transport Industry - Mutual Responsibility for Road Safety (No 2) (2006) 158 IR 17; Shell Refining (Australia) Pty Ltd v CFMEU [2008] AIRC 510, affirmed in [2009] AIRCFB 428; Caltex v AWU (2009) 190 IR 130.
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